MARRIAGE WITHOUT WALI’S CONSENT: A PARADIGM SHIFT IN THE FAMILY STRUCTURE OF PAKISTAN

Abstract

In Islamic law on nikah is referred to as a civil contract. Thus, to fulfil a valid contract all the requisites of a valid marriage (arkan an-nikah) must be fulfilled. The majority of Muslim jurists opined that the consent of the guardian (wali) is one of the pillars determining the validity of marriage. Nevertheless, the Hanafi sect views that it as a mere condition for a marriage. In Pakistan, a precedent has been set in the Supreme Court’s case of Saima Waheed, where it was decided that an adult Muslim woman can marry without the consent of her guardian. The decision ignited a debate on whether the consent of a guardian is a requisite pillar of a marriage contract or merely a condition to it.  In order to comprehend the issue of wali’s consent, it is essential to discuss the purpose of a marriage itself. This article discusses the importance of the wali’s consent under Islamic law, followed by an elaboration on the legal status of a marriage without consent of the guardian under the Pakistani law. Besides arm-chair research, interviews were conducted with female respondents who had conducted their marriage without their wali’s consent. The findings from these interviews indicate that marriage without wali’s consent is shattering the family structure and causing isolation of the partners both from the family and the society. Irrefutably, approval of the guardians in marriage is essential in sustaining the family system.